thereon of the value of 100s. did take, break and pull down, and other goods and chattels of the plaintiff, to the value of 10. did take and carry away. There was another count varying very little from the firft. Upon not guilty pleaded, the jury found, that, of all the premises laid to the charge of the defendant he was guilty, except as to the taking away the goods and chattels in the declaration mentioned, and affelfed the damages to the plaintiff by reafon thereof to 5s.; and as to the taking away the faid goods and chattels they found the defendant not guilty. Upon this verdict there was no certificate of the judge, that the affault and battery was proved, or that the freehold or title was in question.

And the queftion was, whether the plaintiff fhould be intitled to full cofts, his damages being found to be under 40s, and, whether the cafe was within the ftat. 22 & 23 Car. 2. c. 9. fect. 136? That if it was within it, the plaintiff was clearly not intitled to cofts, because the judge who tried the cause hath not certified as that ftatute requires.

The plaintiff having had his full cofts taxed by the prothonotary, the defendant, upon motion, obtained a rule for the plaintiff, to fhew caufe why fuch taxation fhould not be fet afide, upon this ground, that the plaintiff is not intitled to full cofts, his damages being under 40s. and the judge not having certified upon the ftatute 22 & 23 Car. 2. c. 9. fect. 136.

Lord Chief Justice Willes, in giving his opinion, faid, That by the flat. of Gloucester, 6 Ed. 1. c. 1. the plaintiff Milbourne was intitled to his full cofts, unless fome fubfequent ftatute hindered or prevented him; that, with refpect to the ftat. 43 Eliz. . 6. fect. 2. the plaintiff muft have his full cofts in all cafes in which (before that ftatute) he had them by the ftatute of Gloucester, unless the judge certifies upon the 43 Eliz. c. 6. to prevent his having cofts; but that there never had been any fuch certificate upon the 43 Eliz. fince the time of the making thereof, which occafioned the making the flat. 22 & 23 Car. 2. See 1 Wilfon c. 9. fect. 136.-Willes Chief Juftice further faid, That it was 93. Walker, true, that immediately after the making of the flat. 22 & 23 Car. a certificate 2, it seemed to be the opinion of the judges and officers of the upon 43 courts at Westminster, that that ftatute extended to other actions Eliz. befides thofe of affault and battery, and actions of trefpals quare claufum fregit, from 3 Keb. 121 & 247. But that ever fince, about the 25th year of Car. 2. it had been the conftant and uniform refolution of the courts at Weftminfler, that the fiat. 22 & 23 9. fec. 136. was not to be extended to other actions, but to be confined to actions of affault and battery and trefpafs quare claufum fregit. Tho. Raym. 487. T. Jones 232. 2 Siow.

Car. 2. c.

v. Robinson,

The ground of Ld. Ch.

Just. Willes's opinion in Milburne

258.-But he (Chief Juftice Willes) faid, that the reasons given in fome books for taking cafes out of the ftat. 22 & 23 Car. 2. were idle, as that there was deftruction, fpoliation of a chattel, or afportavit of a chattel, that this feemed to fhew an endeavour in the judges to find out reafons for taking cafes out of that ftatute, and because they could not find good ones, they were willing to give any; for (he faid) that fpoliation or afportavit of a perfonal chattel could not amount to evidence that the title of the land was in question, which was requifite to be certified to bring the cafe within the ftat. 22 & 23 Car. 2. This was all that was cited (by Serjeant Wilfon) of the cafe of Milburne and Reade, upon the debate of the cafe at bar; but as the Reporter flatters himfelf that the reft of what Lord Chief Juftice Willes and the other judges faid in the cafe of Milburne and Reade, may not be dif pleafing to the reader, the Reporter will here fet the fame down in the very words he took it.

The late Chief Juftice Willes proceeded to give his opinion in the cafe of Milburne and Reade, as follows, viz.

"In giving my opinion in this cafe, that the plaintiff Milburne is intituled to full cofts without a certificate from the judge upon the ftat. 22 & 23 Car. 2. I do not at all rely upon an afportavit, or the fpoliation of a chattel, but lay them quite out verfus Reade. of the cafe. What I rely upon is, that the plaintiff in no cafe where the damages are under 40s. needs the certificate of a judge to intitle him to full costs, but either in actions of affault and battery, or trefpafs quare claufum fregit, which is the foundation of the judgments in the cafes of Venn and Philips, 1 Salk. 208. (cited in Gilb. 197.) and Thompson and Berry in C. B. Pafch. 7 Geo. 2. on both which cafes I found myfelf; the judges, in neither of those cafes, paid any regard to the fpoliation or afpor tavit; in Venn and Philips, the court would not go upon the afportavit of the hay, for, of that the defendant was not found guilty; nor would they go upon the fpoliation or deftruction of the theep, as appears from the reasons they give in the cafe, which are, that that ftatute extends only to fuch cases where the judges can certify, and they can certify only in affault and bat tery, and trefpafs quare claufum fregit; for the 22 & 23 Car. 2. as to all other cafes but thofe two, leaves them upon the 43 Eliz. thinking that ftatute effectual enough as to them; now after the flat. 22 & 23 Car. 2. the plaintiff cannot have full cofts (where his damages are under 40s.) in affault and battery and claufum fregit, unlefs the judge certifies purfuant to the act. But as to all other actions perfonal, wherein there can be no certificate upon the 22 & 23 Car. 2. as debt, affumpfit, trover, trespass for spoiling his goods, or taking his goods, &c. they fhall

be

be confidered out of the flat. 22 & 23 Car. 2. and in fuch cafes the plaintiff (though his damages are found to be under 40s.) fhall be intitled to full cofts, by the flat. of Gloucester; but if the judge thinks the fuit very frivolous and vexatious, he may deprive the plaintiff of the benefit of the ftatute of Gloucester, by certifying under the 43 Eliz. by which the plaintiff will be in titled to no more cofts than damages, and to lefs, if the judges think fit; and I hope that good ftatute will be put in ufe, as have led the way by certifying upon it very lately.

I

The next ftatute concerning cofts is the 8 & 9. W. 3. c. 10. fett. 4. which for preventing wilful and malicious trefpaffes enacts, that in all actions of trefpafs, wherein at the trial of the caufe it fhall appear and be certified by the judge under his hand upon the back of the record, that the trefpafs, upon which any defendant fhall be found guilty, was wilful and malicious, the plaintiff fhall not only recover his damages but his full cofts of fuit; any former law to the contrary notwithstanding.

Chief Justice

Willes was

the first judge who certified on the 43d

of Eliz. to deprive plaintiff of cofts.

W. 3. c. 10.

malicious

This ftat. of 8 & 9 W. 3. c. 10. fect. 4. plainly fhews that the legislature did not understand the ftat. of 22 & 23 Car. 2. in the fame manner as the courts of law did, viz. to confine it to two forts of actions, but that it extended to all other perfonal actions, for the 8&9 IV. 3. was intended only to relieve in the very fame fort of actions as the flat. of Car. 2. did, but gave cofts Stat, 8 & 9 upon a different principle, not to prevent frivolous and vexatious. was made to fuits as the ftat. of Car. 2. did, but to prevent wilful and mali- prevent all cious trefpaffes, and that, not malicious in lands only, but of all wilful and forts; and if the legislature thought the ftat. of Car. 2. took trefpaffes, away cofts from no trefpaffes befides claufum fregit and affault and battery, they could have no reafon for making the ftat. 8 & 9 W. 3. c. 10. fect. 4. general, and to be extended to all trefpaffes; but in order to reconcile the two acts of parliament there but fome have has been a conftruction put upon the latter, which I will not thought it adhere to; which is, that the ftat. of W. 3. extends only to to claufum claufum fregit, and that, in fact, there hath been no certificate freg, het gå upon that ftatute, but only in trefpafs quare claufum fregit, though Chi Juftice the ftatute is not reftrictive, but fpeaks generally of all trefpaffes, thought con and was made to prevent wilful and malicious trefpaffes generally. trary. But there are other actions of trefpafs befides that of claufum fregit, wherein I will grant certificates upon this ftatute though none were ever granted before,

Indeed, in actions for taking goods and chattels merely, I will not grant certificates upon this fiat. of W. 3. for the abfurdity of it; becaufe, as we have determined that the stat. 22 23 Car. 2. extends only to claufum fregit, it would be ridicu

Y 3

lous

only extends

W le

Objection to full costs in Milburne

verfus Reade.

lous to certify in perfonal trefpaffes, because, then the plaintiff, though his damages found exceed not 40s. will have full cofts upon the ftatute of Gloucefter, unless the judge certifies upon the 43 Eliz. to prevent his having full cofts; and the cafe in which I will certify, upon the 8 & 9 W. 3. c. 10. fect. 4. (though not a trefpals quare claufum fregit) is an action of trefpafs for a voluntary and malicious affault, which is not attended with a battery, for I cannot certify upon the ftat. of Car. 2. for an assault only, but I muft certify by the exprefs words of that fiatute that the affault and battery was fufficiently proved. Suppofe a man draws his fword and fwears he will stab me, and makes a país at me, but miffes me, in this cafe I do not certify upon the ftat. of 22& 23 Car. 2. because there was no battery; but I will certify upon the 89 W. 3. c. 10. Sect. 4. that fuch trespass or affault was wilful and malicious, and let the defendant deliver himself from colts how he can; and fuch a dangerous affault much better deferves a certificate upon the 8 & 9 W. 3. than many cafes of affault and battery do, upon the ftat. of 22 & 23

Car. 2.

I fhall only take notice of two or three more little cafes which do not come up to, or influence the prefent; fuch as Comber. 420. Carth. 224, 225. 2 Vent. 180, 195. All those cafes are plainly within the ftat. of the 22 & 23 Car. 2. in which cafes the plaintiff could not have more cofts than damages, if the latter were under 40s. except the judge certified, for in all those cafes, the trefpafs was committed upon things, for which trefpafs the title of the land must come in queftion, for thofe cafes were either for pulling up or throwing down a hedge, or digging the foil, or flopping a water-courfe and overflowing the land; all which are trefpaffes upon the land, therefore within the stat. of 22 & 23 Car. 2. And if the judge would not certify that the title of the land came in queftion, the courts did right in refufing full cofts. The two cafes in 2 l'ent. 180, 195. are both claufum fregits, and are not merely perfonal, and that is the reafon Lord Chief Baron Gilbert went upon in Butler and Reeves, Gilb. 195, 196. which was folemnly determined.

It is objected that the plaintiff Milburne fhall not have full cofts in this cafe, because part of the verdict is within the stat. of the 22 23 Car. 2. and that therefore the judge ought to have certified, that the trespass in the declaration is not only for taking, breaking and pulling down a standard and roller, which are perfonal chattels, but alfo for an affault, battery and wounding, and the defendant is not found guilty of breaking, &c. the ftandard and roller only, but is alfo found guilty of the affault, battery and wounding; and though the breaking the ftandard is out

of

of the ftat. of the 22 & 23 Car. 2. and the plaintiff fhall have his full cofts upon that without a certificate, yet the affault, battery and wounding is exprefsly within the ftatute; and as the damages found are under 40s. the plaintiff fhall not have full cofts unless the judge certifies that the affault and battery was fufficiently proved: but I am of opinion that will not alter the Answer. cafe, and the plaintiff muft have full cofls without a certificate notwithstanding the defendant is found guilty of the affault, battery and wounding; for as the defendant is found guilty of other things in the declaration for which the plaintiff is clearly intitled to full cofts, the finding as to the affault and battery fhall make no alteration.

in Mi burne

It is further objected that the trefpafs of breaking the ftan- 2d Objection dard and roller, is fuch a trefpafs whereon the title of the land to full cofts might come in queftion, and fo a certificate is neceffary to carry verfus Reade, cofts; but the title of the land in this cafe could not come in queftion as the ftatute requires, which fays that the plaintiff fhall have no more cofts than damages where the damages are under 40s. unless the judge certifies that the freehold or title of the land mentioned in the declaration came chiefly in queftion; now Answer. this trefpafs upon the ftandard and roller is not laid to be done on the land of the plaintiff, or on any particular land, but generally in the parish of A. which plainly thews that the title of the land could not come in queftion as the ftatute requires, and so out of the ftatute, and no need of a certificate within the meaning of the ftatute, and it would be impoffible to be made in this cafe, there being no land laid in the declaration.

Gilb. 198.

As to the cafe of breaking stalls or ftandings in a market, the Raym. 487. plaintiff had full cofts without a certificate, becaufe it is out of 2 Jon. 282. the ftat. 22 23 Car. 2. it is a damage to a chattel, the freehold 2 Sho. 258. of the market could never come in queftion upon such action, and it was not concerning the land; for a perfon may have a right or licence to erect ftalls in another perfon's market, or foil, and it doth not follow that the perfon whofe ftalls were broken was owner of the ground. So, of the standard and roller in this

cafe.

of damages.

There was an argument ufed, fuppofing that the plaintiff Argument could not have full cofts in this cafe, because the damages are for increase found to be under 40s. unless he fhould entitle himself by a proper certificate, yet, there being a wounding laid in the declaration,, and alfo found by the verdict, the court may, upon view, &c. increase the damages to above 40s. and then, beyond difpute, the plaintiff will be intitled to full cofts upon the ftatute of Gloucefter, and needs no certificate. But there has been a cafe in 1 Ld. Answer.